JUDGMENT 1. - This special appeal preferred by the Slate of Rajasthan through the Secretary, Public Health and Engineering Department, Government of Rajasthan and the Secretary, Department of Personnel, Government of Rajasthan impugns a judgment and order dated 11th July, 1997 passed by a learned single Judge of our Court in S.B. Civil Writ Petition No. 2590/95. 2. The respondent-Shiv Dutt Bissa is a Superintending Engineer under the Public Health and Engineering Department. He was charge-sheeted vide Annexure-1 to the Writ Application under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 on 23-11-1992 over an incident which took place in the year 1988-89. He was charged in the first place for placing orders for purchase of C.I. Detachable Joints beyond the prescribed limits of amount at his level. The main allegation against him was that he had exceeded his financial powers as regards the placing of the total quantum of orders which he could place without prior permission of the Chief Engineer. It was his specific case that with a view to depriving him from his promotion to the post of Additional Chief Engineer since he has reached the zone of consideration for the same, a charge-sheet was issued against him even though there was no specific allegation of misfeasance, misappropriation or any loss caused to the Government. It was his further contention that there was no allegation against him that he misused any of his powers. On the other hand, it was his specific submission that he had duly informed the Chief Engineer at the time of placing of orders and he sought his approval in the context of his placing of such orders for urgent requirement of raw-materials and the Chief Engineer did ultimately accord his approval prior to the delivery of the materials. The materials were sent direct to the concerned Executive Engineers and the payment was also made direct by the Divisions after the requirements had been approved. He contended that the whole of the charge-sheet ought to be quashed against him for the reason that the approval/permission which was sought at the time of placing of the orders did culminate in the passing of such orders by the Chief Engineer before the receipt of the purchased materials. He contended that the whole of the charge-sheet ought to be quashed against him for the reason that the approval/permission which was sought at the time of placing of the orders did culminate in the passing of such orders by the Chief Engineer before the receipt of the purchased materials. Had there been any misuse or misconduct on his part, the Chief Engineer, who was informed about six months prior to the receipt of the materials, instead of approving the same would have stopped the approval of the orders initiated by him. As per the Government instructions dated 28-10-1988 (Annexure-3 to the writ application), there is a direction inter alia that as far as possible, order should be issued to all the firms in accordance with the rate contract as per demand, but the order could be issued to one firm for Rs. 3 lacs only and in a circle, no order more than Rs. 5 lacs could be placed by way of orders without obtaining prior permission from the Chief Engineer. The writ petitioner-respondent was competent to place orders up to Rs. 5 lacs and if any order above Rs. 5 lacs for purchase of any material was to be placed by him, a prior permission of the Chief Engineer was required. Admittedly, the writ petitioner-respondent had placed orders for more than Rs. 10 lacs to the firms with simultaneous intimation to the Chief Engineer for approving his action and this he did in view of the urgent need for obtaining the joints for laying down the water pipes. Admittedly, the payment was to be made by the concerned officer i.e. the Chief Engineer after receipt of the materials. 3. In reply to the charge-sheet, the writ petitioner-respondent by his representation dated 7-12-1992 gave out that many water schemes were in progress at as many as 11 places involving huge expenses including the emergency schemes at Jalore and Pali where people were suffering from acute shortage of water due to draught conditions. There was thus requirements of joints to be procured for maintaining the proper regular water supply. The Government decided to complete the water supply schemes as nonavailability of drinking water caused acute distress to the people. There was thus requirements of joints to be procured for maintaining the proper regular water supply. The Government decided to complete the water supply schemes as nonavailability of drinking water caused acute distress to the people. The pipes for supplying the water were made available but the joints not being available for completing the work of connecting the pipes, it was felt necessary by him that orders should be placed immediately for procurement of joints and thus four orders for a total amount of more than Rs. 10 lacs were placed, copies whereof were sent to the Chief Engineer for according approval. His contention inter alia is that this letter seeking for approval of the Chief Engineer was as good as a request for seeking a prior permission. He further contended that in case the order was placed beyond the prescribed limit and if the Chief Engineer did not want to accord his approval, the latter ought to have cancelled the order before the materials were received. After the placement of the orders, the Chief Engineer was having full knowledge of the exact requirements as per the orders and there was exchange of correspondence between the writ petitioner-respondent on the one hand and the Chief Engineer on the other. The very fact that the Chief Engineer did not cancel the orders and approved the same and issued letter of credit for payment to the concerned authorities went a long way to establish the contention of the writ petitioner-respondent that the Chief Engineer had not only approved it but had confirmed the orders which practically amounted to granting of permission. By another letter dated 13-12-1989, the Chief Engineer had directed the writ petitioner-respondent not to place any further orders and except the order passed in a January, 1989, no further orders were placed thereafter. It was further submitted by the writ petitioner-respondent that the orders for the materials to be supplied were as per the approved rate contract and the orders for joints were placed as per the directions of the Hon'ble Chief Minister when he had visited Jalore accompanied by the Home Minister and the Chief Engineer, Jodhpur. It was further submitted by the writ petitioner-respondent that the orders for the materials to be supplied were as per the approved rate contract and the orders for joints were placed as per the directions of the Hon'ble Chief Minister when he had visited Jalore accompanied by the Home Minister and the Chief Engineer, Jodhpur. No loss had been caused to the State Government in any manner, but on the other hand there was a gain for the State Government because of the reason that later on for the year 1989-90, the rates had increased and the Government thus could save a margin of loss which it might had to pay had the order been placed at a later date. The public was in great distress because of non-supply of the joints within time and, therefore, laying down of the pipes could not be carried because of shortage of joints and as soon as the joints reached the destination points, the work was completed and the common villagers were benefited. Despite the fact that it was brought to his notice, the Chief Engineer had allowed the order to be completed and the action of the Chief Engineer thus amounted to permission being granted ex post facto. The writ petitioner-respondent was ultimately found guilty and given a punishment on 30-6-1995 along with other officers who were similarly charge-sheeted. The conclusive part of the penal order against him read as under:- "Sh. Bissa had issued the order of purchase to the extent of Rs. 10.915 lacs. According to the instructions dated 28-10-1988, the petitioner was authorised to issue purchase orders for Rs. 3 lacs to one firm and to issuing orders for more than Rs. 5 lacs, it was necessary for Bissa to have sought the prior permission of Chief Engineer. The petitioner Sh. Bissa had not taken the prior permission of the Chief Engineer and had placed the orders of Rs. 10.915 lacs and thus admittedly he had violated the instructions. Even though these orders were strictly within the limit of Rs. 3 lacs to one firm, but still he had violated the Government instruction dated 28-10-1988 and allegations against him, therefore, are proved. Because of the abovesaid reasons, the allegations against Sh. Bissa are proved partly, therefore, the Governor of Rajasthan hereby orders the punishment of imposing stoppage of two annual grade increments without cumulative effect on Sh. 3 lacs to one firm, but still he had violated the Government instruction dated 28-10-1988 and allegations against him, therefore, are proved. Because of the abovesaid reasons, the allegations against Sh. Bissa are proved partly, therefore, the Governor of Rajasthan hereby orders the punishment of imposing stoppage of two annual grade increments without cumulative effect on Sh. S.L. Parihar, S.E. and Sh. S.D. Bissa, S.E. and Sh. S.D. Rawat, S.E. Sd/- (Dy. Sec. Admn.)"A reply was filed by the present appellants-State of Rajasthan and its officers before the learned single Judge. The State took the plea that because of the reason that the orders placed involved more than Rs. 5 lacs, the instructions dated 28-10-1988 (Annex. 3) had been violated even though the individual orders placed with the four firms were each less than Rs. 3 lacs. It was submitted that the approval and prior permission arc two distinct matters and even though the writ petitioner-respondent had asked for approval simultaneously with the placement of orders, that could not condone the violation of the Government instructions. Since the writ petitioner-respondent had acted beyond the financial powers conferred on him as regards placing of the orders, he had been rightly dealt with. It was further admitted on behalf of the State Government that no enquiry was held as no enquiry was required to be held for imposing a minor punishment. It was submitted in this context that there was no need or necessity of passing any speaking order. Even though no loss had been caused or even though there was no allegation of misconduct or of any misappropriation or misfeasance or misuse of powers, but because of the reason that the Government instructions/circular had been violated, it was sufficient to presume that a misconduct had been made out. 4. It was urged on behalf of the writ petitioner-respondent that the order of penalty that was imposed on him was so passed without due application of mind since there was no discussion of any material, correspondence and/or letters or other matters placed on record by the writ petitioner-respondent along with his reply. Even the alleged plea of justification given out by the writ petitioner-respondent as to why he placed orders without waiting for prior approval and/or sanction of the Chief Engineer was not discussed by the competent authority. Even the alleged plea of justification given out by the writ petitioner-respondent as to why he placed orders without waiting for prior approval and/or sanction of the Chief Engineer was not discussed by the competent authority. It was further submitted by the writ petitioner-respondent that the penal order or order finding him guilty was totally a cryptic, non-speaking order, devoid of any application of mind and passed without due application of mind about his defence. He further contended that no misconduct was made out against him. From the correspondence attached along with the reply to the charge-sheet, which was a part and parcel of the writ application, it was clear enough that an approval was sought well in advance which was ultimately accorded at a stage before the receipt of the materials. The word 'prior permission' could not be strictly considered as not to include the approval if the letter seeking approval had been sent to the Chief Engineer well in advance and much before the receipt of the materials covered by the four orders. The Chief Engineer had ultimately granted his approval prior to the receipt of the materials and also directed that the payment of the materials should also be so effected. The whole exercise had thus been taken resort to by the State authorities only to deprive the writ petitioner respondent of his impending promotion to the post of Additional Chief Engineer and because of the pendency of the disciplinary proceedings, his case was kept in a sealed cover, as a result whereof he was suffering on the date of filing of the writ application. He prayed for quashing of the impugned order of penalty and the order finding him guilty and for a direction upon the respondents to promote him. 5. The learned single Judge went deep into the factual details regarding placement of orders and the Chief Engineer ultimately according his approval and the time sequences of the letters placed by the writ petitioner-respondent and the final accord of approval as made by the Chief Engineer. The Chief Engineer for the first time on 3-6-1989 vide Annex. 10 addressed to the writ petitioner-respondent had asked him to explain the reasons as to under what circumstances he had placed the orders. The Chief Engineer specifically mentioned in the order as contained in Annex. The Chief Engineer for the first time on 3-6-1989 vide Annex. 10 addressed to the writ petitioner-respondent had asked him to explain the reasons as to under what circumstances he had placed the orders. The Chief Engineer specifically mentioned in the order as contained in Annex. 10 dated 3-6-1989 that after receiving the reply from the writ petitioner-respondent his request to supply 1000 joint sets would be considered and the Chief Engineer on the same day vide Annex. 11 had also placed orders to M/s. Krishna Industries which is to be sent to the Executive Engineer, Jalore and Pali with regard to joints with a copy to the writ petitioner-respondent. The Chief Engineer thus on 3-6-1989 himself had sent the requisition of orders to M/s. Krishna Industries which was the firm on which the writ petitioner-respondent also placed his orders on 23-1-1989. The Chief Engineer by another letter dated 23-9-1989 (Annexure 14 to the writ application) had written to the writ petitioner-respondent in the context of his requisition asking him to supply the details of the orders so that the arrangements for doing the needful for procuring the materials from the different firms could be made, which was replied to by the writ petitioner-respondent vide Annex. 15 to the writ application dated 5-10-1989 and after the receipt of his reply, the material was received and letter of credit was issued. The learned single Judge interpreted the correspondence to mean that the writ petitioner-respondent had been informing the Chief Engineer right from January to September, 1989 either for sanctioning approval or placing the orders at the level of the Chief Engineer himself for supply of the joints of water pipes and ultimately, the Chief Engineer not only approved the orders but also permitted receipt of the joints. The joints were received after the approval by the Chief Engineer. The joints were received after the approval by the Chief Engineer. The learned single Judge minimised the question of transgression of the Government instructions in this regard to the effect that the circular or instructions were thereby not violated and thus, there was no application of mind to the peculiar facts of the case and even though any violation of the Government instructions had been made out, admittedly, the punishing authority has failed to apply its mind by refraining from passing a speaking order and by not allowing the writ petitioner-respondent to give his defence by way of pleading his ignorance in the form of documents and thus the principle of natural justice was completely violated by the competent authority which resulted in an arbitrary action being taken by way of a penal order against the writ petitioner-respondent. Quoting Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, the learned single Judge expressed his view that after the receipt of the representation to the charge-sheet submitted by the delinquent officer, if no enquiry was required to be held, the competent authority was at liberty to pass a speaking order after taking into consideration the points raised by the delinquent officer. Thus, the competent authority was to apply its mind to the facts and circumstances of the case and in order to consider the reply on each specific allegation, a speaking order was necessary. The competent authority did not adhere to the Rule in the present case. The Disciplinary Authority was to objectively consider the averments contained in the representation submitted by the writ petitioner-respondent in reply to the show cause notice and if there was nothing to show that the representation as submitted by him has been duly considered, the order of punishment could not be sustained. It was further observed by the learned single Judge that the competent authority had not examined the various contentions raised by the writ petitioner-respondent in his reply to the show cause notice, but has simply passed a non-speaking order. Even for imposing a minor punishment it is incumbent on the part of the Disciplinary Authority to apply its mind to the facts and circumstances of the case and pass a speaking order. 6. Even for imposing a minor punishment it is incumbent on the part of the Disciplinary Authority to apply its mind to the facts and circumstances of the case and pass a speaking order. 6. Confusing the entire issue as regards misconduct, the learned single Judge, however, was of the view that since admittedly in the present case the Chief Engineer after being informed did approve and issued letter of credit for receipt of the materials which amounted to not only approval but a clear permission as well and the Chief Engineer not having cancelled the orders or having issued any direction upon the writ petitioner-respondent so as to cancel the orders, there was no misconduct at all made out. Basing his reliance on some of the judgments of the Supreme Court, the learned single Judge misconstrued the law on the point and held that no exhaustive definition of "misconduct" could be given or any limits could be imposed while defining misconduct. Each case depends upon its own facts in regard to commission of misconduct. In the present case, apparently the learned single Judge thought there was no allegation of any corrupt motive or statutory violation of any instructions or even of any fact that hardship has been caused to the State. According to the views of the learned single Judge only because of the reason that the writ petitioner-respondent had written to the Chief Engineer after placement of the orders even though six months ahead prior to the receipt of the materials for approving his action or for according permission, it could not be said that there was a case of misconduct or violation of any instruction. Since much before the receipt of the materials, the Chief Engineer was informed and the Chief Engineer being seized of the matter after asking for certain clarifications from him and after obtaining such clarifications, had himself issued letters of credit, it could not be said that the writ petitioner-respondent had violated any instruction. Clearly on this point the learned single Judge over-stepped the jurisdiction of the Court as regards the interpretation of concept of "misconduct". 7. Clearly on this point the learned single Judge over-stepped the jurisdiction of the Court as regards the interpretation of concept of "misconduct". 7. As regards the writ petitioner-respondent's consideration for promotion to the post of Additional Chief Engineer, since the D.P.C. kept its recommendation in a sealed cover, the learned single Judge directed the State authorities to open the sealed cover and in case he was found to be fit, he should be entitled to promotion as per merit. In case he was not considered at all because of the pendency of the charge-sheet, even though he was within the zone of consideration in the year 1994-95 or at any time during the pendency of the charge-sheet, his case should be so considered by constituting the Departmental Promotion Committee. The learned single Judge also awarded a cost of Rs. 2000/- against the present appellants. 8. Mr. P.C. Sharma, learned advocate appearing for the appellants submitted before us a decision of the Supreme Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik, (1996 SCC (Lab) 1194 : (1996) 4 JT (SC) 457 . That was a case where the Bank Manager Nikunja Bihari Patnaik allowed over drafts or passed cheques involving substantial amounts beyond his authority, but such acts did not result in loss but in some instances it yielded profit to the Bank. The act of the respondent was spread over a sufficiently long period and involving a large number of transactions. On the question whether the act of the respondent-Bank Manager could be characterised as errors of judgment or it amounted to misconduct, the Supreme Court held that acting beyond one's authority is by itself a breach of discipline and breach of Regulation and constitutes "misconduct" within the meaning of Regulation 24 of the Central Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976. It was further found that breach of Regulation 3 which requires every officer/employee of the Bank to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank Officer and requires the officer to maintain good conduct and discipline and to act to the best of his judgment in performance of his official duties or in exercise of the powers conferred upon him, is a 'misconduct' within the meaning of Regulation 24. 9. In the facts and circumstances of the present case also, we are of the considered view that the writ petitioner-respondent having violated the departmental instructions and placement of orders which were beyond his financial powers thereby disregarded the circular Annexure-3, dated 28-10-1988 without prior permission of the Chief Engineer and it prima facie amounted to a 'misconduct'. The Circular Annexure-3 runs as follows : "As far as possible all allotted firms should be given orders as per the demand in a proportionate amount but no firm can be given orders of an amount exceeding Rs. 3 lacs during this rate contract period and 'for amount exceeding Rs. 5 lacs in his circle should obtain prior permission of the Chief Engineer'. In case of most important circumstance if any, necessity is felt for deviation of the aforesaid rules then the matter should be placed before the Chief Engineer for prior permission." 10. We have with our circumspect eyes gone through the entire disciplinary proceedings. We are constrained to hold that the enquiry even though under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 was not conducted in a fair manner against the writ petitioner-respondent. His plea of mitigating circumstances and justification for an urgent necessity for placing the orders without even having a prior approval was not duly considered by the Disciplinary Authority in any manner whatsoever within the four corners of the findings in the enquiry. We accordingly agree with the learned single Judge that the enquiry even though under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 was not conducted in a fair manner against the writ petitioner-respondent. We direct that it should be done de novo from the stage of serving of the charges and the reply thereto and every opportunity must be given to the writ petitioner-respondent of establishing his defence at the enquiry. There should be a proper application of mind to the defence case vis-a-vis the violation of the circular/instructions and there should be a fresh finding in the enquiry in accordance with the law on the basis of which the Disciplinary Authority should pass an appropriate order in accordance with law. 11. We do not agree with the observations of the learned single Judge that no case of misconduct has been (made) out against the writ petitioner-respondent. 11. We do not agree with the observations of the learned single Judge that no case of misconduct has been (made) out against the writ petitioner-respondent. There is a prima facie case of misconduct and even if there is a technical violation of the circular/instructions which amounts to misconduct, as to what should be the quantum of punishment could only be reached by the Disciplinary Authority after there is a due application of mind to the defence case as sought to be made out by the writ petitioner-respondent in the context of the mitigating circumstances. The learned single Judge has committed grave irregularity in quashing the charge-sheet which he ought not to have done even though he was justified in interfering with the order of punishment. 12. As regards the sealed cover promotion about which the learned single Judge passed directions, we are of the considered view that the same is liable to be set aside. The departmental circulars holding the field regarding the procedure to be followed by the Departmental Promotion Committee/appointing authority regarding promotion of Government servants under suspension or against whom disciplinary proceedings are pending or whose conduct is under investigation have been reviewed by the State Government carefully in the light of the Supreme Court judgment dated 27-8-1991 in Union of India v. K.V. Jankiraman, reported in AIR 1991 SC 2010 : (1991 Lab IC 2045) . The latest circular that has been issued in this regard is DOP Circular No. F.10(1)Karmik/ Ka-11/75, dated 26-11-1993 (50/93). The Departmental Promotion Committee shall assess the suitability of the Government servant coming within the purview of the circumstances as stated in the circular i.e. the Government servant under suspension or Government servant in respect of whom charge-sheet has been issued and disciplinary proceedings are pending and Government servants in respect of whom criminal prosecution charge is pending and charge-sheet is issued against him by the competent Court. The Departmental Promotion Committee is to assess the suitability of the writ petitioner-respondent within the purview of the circumstances along with other eligible candidates, without taking into consideration the disciplinary proceedings itself which are pending against him. The Departmental Promotion Committee is to assess the suitability of the writ petitioner-respondent within the purview of the circumstances along with other eligible candidates, without taking into consideration the disciplinary proceedings itself which are pending against him. The assessment of the D.P.C. including question whether he is fit or unfit for promotion and the grading awarded by it naturally will be kept in a sealed cover and the cover would be superscribed 'finding regarding suitability for promotion to the post of AdditionalChief Engineer in respect of the writ petitioner-respondent and is not to be opened till the termination of the disciplinary proceedings against him. The proceedings of the D.P.C. need only contain the note 'the proceedings are contained in the attached sealed cover' and only on the conclusion of the disciplinary enquiry the writ petitioner on being absolved of the charges, could derive the benefit of a favourable recommendation of D.P.C. 13. With these observations, the special appeal stands allowed to the extent as indicated above. The judgment and order as passed by the learned single Judge stands set aside accordingly and we direct that there should be a de novo holding of the enquiry after the stage of issuance of the charge-sheet and the filing of the reply by the writ petitioner-respondent and the findings are to be made by the disciplinary authority in accordance with law keeping in view' the context of the mitigating circumstances pleaded by him in justification of his placement of orders prior to his obtaining the consent/permission of the Chief Engineer. The disciplinary authority should apply its mind to the entire perspective and pass appropriate orders in accordance with law within a period of three months from today and till such time there is any final order passed by the Disciplinary Authority, the sealed cover recommendation for promotion would remain as it is.Appeal allowed. *******